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Monday, December 2, 2013

Kenya is staging a diplomatic revolt against the International Criminal
Court and the West as President Kenyatta is told to stand trial in
February.

In northern Uganda, a former altar boy-turned-rebel commander led an
army of kidnapped children in a years-long terror campaign that pushed
more than a million people into displacement camps.

In Darfur in western Sudan, armed attackers riding horses and camels
swept through the desert, targeting members of rival ethnic groups,
raping, looting, and killing. Allegedly sent by the country'

s elected leader, they killed as many as 450,000 people and forced 2.9 million to flee their homes.

In Ivory Coast, an embattled president desperate to cling to power
allegedly ordered his Army, alongside loyal private militia, to rape,
persecute, and murder supporters of his election rival.

These are three of the eight cases currently before the International
Criminal Court (ICC), the world's only permanent tribunal specifically
set up to prosecute individuals for genocide and crimes against humanity
– and whose legacy dates to the Nuremberg trials after the defeat of
Nazi Germany.
Before it began work in March 2003 there was no full-time mechanism for
international justice to pursue those accused of the world's worst
crimes, and to seek retribution on behalf of victims.

Yet now the ICC, based in The Hague in the Netherlands, faces its
sternest test yet, a worst-case scenario in which the court's
credibility has been seriously damaged amid accusations of colonialism,
bias, and incompetence.

Those claims spring from the fact that all eight cases so far on the
ICC's books emanate fromAfrica, and every one of its 32 indictees is
African. Is this body created for international justice in fact only
chasing African crimes?
That's the view of the angry African Union, which calls the ICC a "race hunting" tool of a "declining&quot;
West. But now a crunch case from Kenya raises the stakes further: After
a Nov. 15 vote theUnited Nations Security Council said that President
Uhuru Kenyatta, elected in March despite ICC charges of crimes against
humanity, may not use his executive status to delay his trial by a year.
That is leading to a full-scale diplomatic uprising by the Kenyan
government and the AU against the ICC – even while 67 percent of Kenyans
think that their leaders should stand trial.

A WORK IN PROGRESS

To be sure, the ICC is and has been very much a work in progress. It is
lambasted for its high costs, a glacial trial pace, and for a perceived
lack of clout. Yet it has, at least as an ideal, powerful support around
the globe as a nod toward accountability; and one day, as the wheels of
justice grind slowly, it may have more authority.
"I've worked in war-damaged parts of Africa since 1980, and I've
seen truly terrible things take place that were dismissed as, well
that's just what happens," says Tim Allen, director of the justice and
security research program at the London School of Economics.
"Since the ICC came into existence, that impunity is gone. For the first
time, there is a discussion in these places about how justice can be
applied, about there being something we can do, rather than the
powerlessness of before."
Along with its Nuremberg roots, the ICC is a direct descendant of the ad
hoc tribunals for the former Yugoslavia and Rwanda that prosecuted
those who presided over the killing fields of Srebrenica and Kigali,
respectively, in the 1990s.
The ICC was established during a spasm of internationalist idealism
between the end of the cold war and 9/11; its founding philosophy was
that never again would the world's powerless have nowhere to turn.
The 1998 arrest in a private London hospital of Argentina's former
leader, Gen. Augusto Pinochet, only added to the enthusiasm that a
game-changing era of accountability was arriving. (Pinochet was let go
on medical grounds – but not before what has been called "the Pinochet
effect" offered an implicit warning to the ruthless that someone was
starting to watch.)
Yet since the ICC took up its work in two towers connected by a gleaming
sky bridge, its effect is unclear. This fall and winter, legal
proceedings continue for Mr. Kenyatta and his deputy, William Ruto –
former political foes who joined in a surprise alliance to win the March
election in Kenya by a whisker.
Both men deny charges of crimes against humanity over alleged
orchestration of weeks of violence that followed Kenya's disputed 2007
presidential elections.
The two say they were elected by voters who knew they were under indictment by the court but voted for them anyway.
Both men promised last spring to face the court whether elected or not –
prompting Kenya's media to joke about "ruling by Skype" from the
Netherlands. Mr. Ruto's trial began in September.
The two men have been asking the ICC to allow them unfettered time to
serve their elected offices. They promised to go to The Hague later to
clear their names.
That violates Kenya's own Constitution, which grants no such
international immunity even to the president, and it goes against the
Rome Statute that established the ICC, which Kenya at the time gladly
and even proudly signed.
In Kenya, official efforts to defer the trials have been keenly
followed. Some bids have been technical – the unavailability of
witnesses, for example. Other bids have been political – Ruto was
excused for a week to deal with the fallout from the Westgate mall
terror attack.

NEW ANIMOSITY

Kenyatta did succeed in deferring his Nov. 12 court date to February.
But the Security Council – with Russia, China, Pakistan, and Azerbaijan
on one side, and Britain, the United States, South Korea, Australia, and
France on the other – has now said there can be no further court
delays.
That is leading Kenya toward a new animosity toward the court and a new
narrative that claims the ICC is a tool of a still-imperialist West that
ignores crimes committed by its own leaders and unfairly targets
Africans.
After the Security Council decision, Kenya raised eyebrows with official
statements in which it deigned to speak for all Africans: "It cannot be
that a few countries take decisions that go against reason and wisdom
in a matter so important to nearly 1 billion Africans," it said.
Still, Kenya and the AU seem reasonable in asking why the ICC has not
prosecuted cases from Iraq, Afghanistan, Syria, or the Palestinian
territories.
(To be fair, the ICC's chief prosecutor, Fatou Bensouda, herself an
African from Gambia, is investigating alleged crimes in Honduras,
Afghanistan, Georgia, and Colombia. A UN panel is also looking into the
prison gulag system in North Korea.)
There are debates about the expense of ICC trials and salaries, and
suggestions that local tribunals in Africa would be more sensible from a
pocketbook standpoint. In a study of Rwanda's post-genocide domestic
community "Gacaca" courts, prosecutions ran at $50 per accused; the
international tribunal's price tag averaged $20 million per suspect.
There is skepticism as well over cultural differences. What link is
there between the ICC in the Netherlands, with its well-ordered canals
and perfect fields of tulips, and the villages of Congo, where the
electricity often shuts off. Can former child soldiers relate to the
ICC's high-tech wood-paneled modern courtrooms and robed authorities?
The recent antipathy reverses an initial enthusiasm in Africa for the
new court. In the early 2000s, African leaders were among the quickest
to sign and ratify the Rome Statute. Today, 34 of the continent's 54 nations are members.
Of the eight cases before the ICC, four began at the request of the
African countries where the alleged crimes took place: Uganda, Mali,
Congo, and the Central African Republic.
Two others cases – involving Darfur and Libya – were launched by the
Security Council but supported by African nations sitting on the Council
at the time.
Even Kenyatta and Ruto in their earlier political careers vocally supported sending Kenyan election violence cases to the ICC.
Africa's initial enthusiasm to associate itself with this global tool of
justice had a lot to do with decades of civil wars and rebellions, and
their accompanying atrocities, which were carried out without any
payback ever taking place.
"The genocide in Rwanda [in 1994] was a turning point," says Stephen
Lamony, a senior adviser at the Coalition for the International Criminal
Court, a collection of 2,500 civil society organizations from 150
countries.
"There was a feeling that the international community had turned its
back on Africa too many times, and it had nowhere to turn. Joining the
ICC was a way for African leaders to stand with the rest of the world
and say 'never again.' "
Now, some of those leaders no longer take the same stand.

A TOY OF DECLINING IMPERIAL POWERS?

The AU, at an extraordinary summit in October ahead of Kenyatta's
scheduled court date of Nov. 12, agreed that no serving head of state
should appear before the ICC or any other such international tribunal.
At the same gathering, Kenyatta himself singled out the US and Britain for "politicizing&quot; a court that applied double standards.
"The ICC has been reduced into a painfully farcical pantomime, a
travesty that adds insult to the injury of victims," he told the AU
summit in his most forceful comments on the court yet.
"It stopped being the home of justice the day it became the toy of
declining imperial powers. The West sees no irony in preaching justice
to a people they have disenfranchised, exploited, taxed, and
brutalized."
It would be wrong to suggest that "Africa," a collection of 54
countries, speaks with one voice in its apparent shift away from support
for the ICC, no matter what the AU Secretariat would claim.
Countries including Botswana, Chad, Ghana, and Senegal have indicated
they would not follow any future order from the AU to follow Kenya's
lead and withdraw from the court.
Even if that were to happen – and most agree it won't – it is too late, says Professor Allen of the London School of Economics.
"One of the great powers of the ICC is that it is a permanent court;
there is no mechanism for stopping prosecutions against individuals,"
he says. "Maybe they are not going to be prosecuted now, maybe it will
be in 10 years, or 20, but the only way anyone can get rid of an ICC
charge is to go to the court and go through the process of clearing
their name."

ACCOUNTABILITY NEEDED

John Campbell, the former US ambassador to Nigeria and now an Africa
analyst at the Council on Foreign Relations in New York City, says that
Africa needs the ICC, despite its flaws.
Mr. Campbell points to a recent Amnesty International report on Boko
Haram in Nigeria noting that not a single member of the group has been
charged with a crime despite years of slaughtering victims including
schoolchildren, Christians, wedding parties, and moderate Muslims. (On
Nov. 13 Boko Haram was officially placed on the US terror list.)
"The problem with Africa is a lack of accountability, poor governance,
and the looting of the state, but mainly [governments that are]
unaccountable," Campbell says.
"I don't want to see this basic issue lost in a lot of talk about
cultural imperialism from the West in the form of imposed courts. The
question is: Are you allowed to murder? That question predates Western
modernity."
In the Pinochet effect, the simple presence of the ICC is credited with
causing some bad guys to pause who might have assumed before that they
could act with impunity.
"The most extraordinary thing is that today you can go to a village in
South Sudan, Congo, Uganda, a long way from a capital city, and have a
serious discussion about what it means to allocate impunity, to seek
justice, [to ask] what kind of justice you want," Allen says.
New forms of justice and accountability create powerful new dynamics in people's minds, he says. "Once you open Pandora's box, it is very difficult to get the lid back on."

SIDEBAR FROM MAI MAHIU CAMP

REFUGEES LOSING HOPE THAT THE ICC WILL HELP

On the floor of East Africa's Rift Valley, beneath high escarpments and
in the shadow of dormant volcanoes, families that fled Kenya's
post-election violence six years ago are settling on new land far from
their old homes.
They first took refuge here in flimsy shelters thinking they would soon
return to their farms. But now they live in stone houses with tin roofs.
They are among 600,000 victims displaced into camps following violence during the disputed elections. Some 1,300 people died.
The International Criminal Court was established to advocate for victims
and to fight for justice. Yet many here say the ICC is failing the
displaced people of the Mai Mahiu camps, 30 miles west of Nairobi.
"It is not about us victims," says Joel Mwaniki, who says the court
should have been involved in the resettlement of victims before the
trial started. Mr. Mwaniki first supported the court but has become
disillusioned after six years in the camp.
Margaret Wambui, who helped form a subcamp here called Vumilia-Eldoret,
says investigations carried out by former ICC chief prosecutor Luis
Moreno-Ocampo were flawed.
"We are the ones who saw and experienced the violence. But when the
prosecutor came here, he never talked to us," she says, adding, "Let's forget what happened so that we continue to live together in peace.... It's over. I don't think the ICC is important anymore."
With a five-gallon water can strapped to her back, Janet Njeri, a mother
of four, says many victims had forgiven each other and moved on.
"I don't think the ICC will bring any meaningful change, because if one
lost a child or a parent, they will not be resurrected because [the
person responsible] has been jailed," she says.
Most people here say they watch the ICC trials closely. But some have
given up. Peter Kamau, a shoe salesman, says his greatest concern is his
daily survival. "My business was doing very well before the violence. I
lost everything, but my priority now is to revive it, not the ICC
cases," he says.
Not everyone is bitter about the trials. Mine Nyamatha says victims
cannot move toward forgiveness without feeling a greater sense of
justice.
"I am afraid we have not healed as a country. These cases are opening old wounds that can spark new violence," she says.
Indifference to the ICC has even grown around Eldoret, a town in the
west that was the epicenter of violence. Community leader Wesley
Chirchir says people have been surprised by the evidence presented in
The Hague, as the trial of Deputy President William Ruto began.
"[The ICC prosecutors] seem not to have done their work well," he says
in a phone interview. "The witnesses are trying to ignite past
differences."
Yet the idea that the cases should be dropped is a minority view in
Kenya, says Audi Ogada, a civic leader in Kisumu, a city near Lake
Victoria that is a stronghold of opposition to PresidentUhuru Kenyatta.
"Generally Kenyans are demanding justice," Mr. Ogada says. "The victims
must get justice, and that means the ICC must prosecute the people who
participated in killings, destruction of property, and displacement of
people."